OIG Sentinel Case No. 20-03

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight SENTINEL CASE OIG No. 20–03 View Case Summary in Data Explorer JUNE 15, 2020 The Department Refused to Take Disciplinary Action had punched her in the face and slammed a truck door on her hand. While the girlfriend called 9‑1‑1, Against an Officer Despite Evidence That Suggested the neighbor searched for the missing portion of He Punched His Girlfriend and Slammed a Truck Door her thumb. on Her Hand, Which Cut Off Part of Her Thumb Fire department personnel arrived first and medically The Office of the Inspector General (OIG) is responsible for, among treated the girlfriend. The police also responded to the apartment complex. They found the girlfriend other things, monitoring the California Department of Corrections with her clothes covered in blood. Her lower lip and Rehabilitation’s (the department) internal investigations and was cut and actively bleeding. Her left thumb was employee disciplinary process. Pursuant to California Penal Code in a bandage. The police took photographs of the section 6133, the OIG reports semiannually on its monitoring of these girlfriend’s injuries. cases. However, in some cases, where there are compelling reasons, the OIG may issue a separate public report; we call these Sentinel Cases. The OIG The police searched for and found the severed may issue a Sentinel Case when it has determined that the department’s portion of the girlfriend’s thumb in the apartment handling of a case was unusually poor and involved serious errors, complex’s parking lot. Emergency personnel even after the department had a chance to repair the damage. This transported the girlfriend to the hospital, but medical Sentinel Case, No. 20–03, involves departmental executives, despite a staff there could not reattach the severed portion of preponderance of the evidence, refusing to take disciplinary action against the girlfriend’s thumb as it had been cut off at the an officer who punched his girlfriend and then slammed a truck door on joint. She did, however, receive approximately half a her hand, completely severing a portion of her thumb at the first joint. dozen stitches for her split lip. On December 15, 2018, the officer and his girlfriend engaged in a The officer returned home that night and took verbal altercation at her apartment complex. The following narrative photographs of his own hands. Meanwhile, the police is based on statements the girlfriend made after the incident occurred: tried to contact the officer, but he did not answer The girlfriend was outside, talking on the phone with her mother, the phone. when the officer exited her apartment. The girlfriend ended the call with her mother and followed the officer, who was walking toward his The next day, on December 16, 2018, the police truck, and the couple began screaming at each other. According to the arrested the officer at the prison where he was, and girlfriend, the officer punched her in the face, causing her lip to bleed. continues to be, employed. The police inspected the She approached the officer as he entered his truck, pleading with him officer’s truck and found trace amounts of blood in to “talk things out.” The girlfriend reported she had her hand on the the door jamb of the front driver’s‑side door. The truck door when the officer forcefully slammed the door on her hand. officer reported that on the previous night, he saw The girlfriend stated she passed out briefly his girlfriend as he opened the front driver’s‑side and regained consciousness to find that door of the truck, grabbed the inside door handle and her thumb, bloodied and maimed, was slammed the door shut, and she fell to the ground. now missing the entire tip, down to the The officer admitted that he continued to drive away first joint. According to the girlfriend, the even after his girlfriend fell. officer was fleeing the scene in his truck, driving at a high rate of speed through The district attorney filed felony charges of domestic the parking lot, leaving her screaming, violence and mayhem against the officer. The court battered, and bleeding. As the officer held a preliminary hearing, at which the girlfriend waited for the automatic gate to open so testified. After evaluating the evidence, including the that he could drive out of the parking lot girlfriend’s testimony, a superior court judge found of the apartment complex, the girlfriend that the district attorney met the burden of proof and yelled, “My thumb is gone!” held the officer to answer on the charges. The judge The girlfriend on the night of the altercation: concluded that the evidence in this case would lead a A neighbor heard the disturbance, the injury to her lower lip. reasonable person to believe in, and conscientiously emerged from his apartment, and found the girlfriend walking to entertain a strong suspicion of, the defendant’s guilt the apartment building from the parking lot with a big cut on her lip ( People v. San Nicolas (2005) 34 Cal.4th 614, 654 ). and bleeding from her mouth. The girlfriend stated that the officer Page 1 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OIG NO. 20–03 SENTINEL CASE JUNE 15, 2020 Meanwhile, the department initiated an internal have tripped and fallen. The department attorney, who had supported investigation into the girlfriend’s allegations against the previous warden’s decision to sustain the allegations and dismiss the the officer. Among other investigative activities it officer, then opined that she no longer believed the department could conducted, the Office of Internal Affairs interviewed prove its case. the girlfriend and the officer. On May 23, 2019, the The OIG disagreed and elevated the decision multiple times to three officer lied to the Office of Internal Affairs when he different departmental executives: an associate director, a deputy denied that he punched his girlfriend and slammed a director, and a director. (To elevate a decision means to appeal that truck door on her hand. decision to a higher level of authority.) Departmental executives After the investigation had concluded, the officer’s concluded the department could not hiring authority, a warden, reviewed all the case prove it was more likely than not that materials, including the report, the photographs the officer battered his girlfriend, the police took, and the interview recordings, and and then lied about it to outside evaluated the evidence. On August 6, 2019, the law enforcement and to the Office warden sustained allegations that the officer battered of Internal Affairs. Departmental his girlfriend and that the officer lied to the police executives noted there were no third‑ and to the Office of Internal Affairs. The warden party witnesses to the incident, it was a The girlfriend after receiving stitches for her split lip. did not sustain the mayhem allegation. The warden “he said/she said” situation, there were inconsistencies in the girlfriend’s decided to dismiss the officer from his employment statements, and, after criminal charges were filed, the girlfriend had sent with the department. The department attorney, who an email message to the officer stating she could no longer recall exactly also evaluated the evidence, supported the warden’s how she sustained the injuries that night; this emailed message caused decisions to sustain the battery and dishonesty the district attorney to ultimately dismiss the criminal charges. allegations against the officer and to dismiss him. The OIG disagrees with the department’s decision to take no On September 10, 2019, a predeprivation hearing, disciplinary action in this case. On the date the event took place, the called a Skelly hearing, was held. The Skelly officer girlfriend consistently reported to a neighbor, to 9‑1‑1, and to the police heard a presentation by the officer’s attorney and, that the officer punched her and slammed the door on her hand. She based on the presentation, concluded there were had injuries that supported her version of the events. She suffered a inconsistencies in the girlfriend’s statements and that split lip, for which she received multiple stitches. She lost part of her the officer “presented himself humbly, very confident thumb. Photographs documented the injuries. A neighbor who was in his demeanor, and body language was agreeing [sic] willing to testify told outside law enforcement and the Office of Internal with the statements of his legal representation.” The Affairs that he heard the officer and the girlfriend arguing, heard the Skelly officer recommended the warden withdraw the “screeching of tires” as the officer sped out of the parking lot, and disciplinary action. observed the horrendous injuries the girlfriend suffered. By the time of the The above facts are those a superior court judge relied upon to hold the Skelly hearing, a new officer to stand trial on felony charges of domestic violence and mayhem. warden had replaced The above facts are those a warden reviewed to sustain allegations the the original warden as officer battered his girlfriend, and lied about it to the police and to the the hiring authority. Office of Internal Affairs. The above facts are those a warden used to The new warden, support his decision to dismiss the officer. And the above facts are those without consulting a department attorney should present to the State Personnel Board in The girlfriend’s bandaged thumb. the OIG, adopted pursuing disciplinary action against the officer. Instead, the department the Skelly officer’s recommendation and withdrew is taking no disciplinary action at all. the disciplinary action against the officer. The The warden who originally reviewed this case and made prison’s employee relations officer subsequently findings was correct in determining there was a preponderance of notified the OIG. Upon learning of the decision, the evidence needed to prove the allegations in a hearing, and it was more OIG immediately contacted the new warden, who likely than not that the officer had engaged in misconduct. This same affirmed his decision to withdraw the disciplinary warden correctly recognized the importance of protecting the integrity action. The OIG attorney asked the new warden for of the department and the absolute requirement that its peace officers his thoughts on how the officer’s girlfriend sustained be held to the highest standards of ethical behavior. Unfortunately, the the egregious injuries. The new warden responded, department is not always willing to strenuously support these critical “I don’t know. I was not there.” The new warden then standards and values. This is one of those cases. The OIG disagrees. blamed the girlfriend and speculated that she could OIG Page 2 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 1, 5, 6, 7, 8, 9, 10 1 2 The OIG’s comments begin on page 7. Page 3 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 3 4 5 6 7 8 7 Page 4 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 7 8, 9 10 11 11 11 Page 5 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 12 Page 6 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 COMMENTS OFFICE OF THE INSPECTOR GENERAL’S COMMENTS ON THE RESPONSE FROM THE DEPARTMENT OF CORRECTIONS AND REHABILITATION To provide clarity and perspective, we are commenting on the California Department of Corrections and Rehabilitation’s (hereinafter referred to as the department) response to our Sentinel Case No. 20–03. The numbers below correspond with the numbers we have placed in the margin of the department’s response. The department contends the Sentinel Case does not fully capture the facts underlying the discipline of the officer in this case. We submit the facts contained in the Sentinel Case are comprehensive and have been verified for accuracy. 1. The department contends that the OIG did not address credibility in this case; this assertion is incorrect. Credibility can be determined by a multitude of factors: corroboration, body language, demeanor, and so forth. We weighed not only the credibility of the girlfriend and the officer, but also found corroboration in the physical injuries suffered by the girlfriend and the statement of the girlfriend’s neighbor, and determined that the girlfriend’s initial statements to law enforcement and to her neighbor on the night of the incident are the most reliable. The department tends to give undue credence to its officers (see OIG Sentinel Case No. 20–01, in which the department disregarded credible inmate testimony and chose to believe the self‑serving statements of its officers; and OIG Sentinel Case No. 20–02, in which the department dismissed statements from its own department attorneys and employee relations officer and, again, chose to believe the self‑serving statements of its officer). The officer in this case had every reason to be untruthful. Not only was the officer’s job potentially at risk, but he also was subject to criminal prosecution. The injuries the victim suffered are not consistent with the officer’s version of events. The officer also fled the scene. His behavior of fleeing the scene is circumstantial evidence of his consciousness of guilt. In addition, on the evening of the incident, when the police attempted to call the officer and speak with him regarding the incident, he did not answer the call. The department completely ignores the fact that the original warden on the case not only believed the girlfriend and sustained the allegation that the officer battered his girlfriend, but also added two additional allegations against the officer. The original warden added a dishonesty allegation against the officer for lying to outside law enforcement and for lying to the Office of Internal Affairs. 2. The department has no problem minimizing the victim’s injuries, referring to the laceration on her lip, which required multiple stitches, as just a “cut” and describing the permanent disfigurement of her thumb as just the “tip” of her Page 7 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 thumb being severed, when, in actuality, her thumb was severed to the first joint. The department is blaming the girlfriend, who is the victim, in this case. 3. The department contends that the officer drank three alcoholic beverages, and the girlfriend allegedly consumed double that amount. The department does not make any reference as to the source of this information. However, after again reviewing the evidence in the case, it appears that the department obtained this information from the officer’s interview with the Office of Internal Affairs. The department chooses to believe the officer’s self‑serving statements regarding how much alcohol he and the girlfriend consumed despite the fact that, on the night of the event in question, he and the girlfriend attended a business event for her employer in which she was responsible for the event and had hosting responsibilities. Both parties admitted to consuming alcohol. However, the actual amount of alcohol imbibed by the officer or the girlfriend was never independently confirmed. 4. The department asserts that the officer was consistent with his version of the events regarding the incident in question. However, just because someone is consistent with his or her story does not make the story true. The department has conflated repetition with validity. It is also worth noting that the officer did not wait for the police to arrive on the night in question, and he did not answer the phone when the police attempted to speak with him that same night. The officer had plenty of time to formulate his version of events by the time he was briefly interviewed by the police on the following day. The officer also had more than five months to think about what he was going to say during his interview with the Office of Internal Affairs. 5. The department inaccurately recounts the officer’s version of events. The department asserts that the officer was attempting to close the door when he was approached by his girlfriend who kept the door open in order to prevent him from leaving. However, the officer actually stated that he had already entered his vehicle and shut the door when his girlfriend approached and opened his driver’s side door. The officer alleged the vehicle was actually running. If this is true, the officer could have driven away at any point. The officer stated he refused to speak with his girlfriend and admitted in his Office of Internal Affairs’ interview that, after she opened the door and asked to speak with him, he “slammed” the door shut.1 The officer claimed he felt a “nudge” when he first began to close the car door.2 The Office of Internal Affairs’ special agent asked for clarification in regard to what the officer meant by “nudge.” The officer explained he felt some light resistance when he attempted to pull the door shut, as if she “had a handle” on the door, and he “ripped” it out of her hand.3 The special agent specifically asked him if he felt the resistance when the door tried to close against the frame of the car and the 1. Office of Internal Affairs’ interview of officer, time stamp, 16:36. 2. Office of Internal Affairs’ interview of officer, time stamp, 16:41. 3. Office of Internal Affairs’ interview of officer, time stamp, 18:19. Page 8 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 officer stated, “No,” that it was in the beginning.4 During the interview, the officer claimed he opened the door again because he saw his girlfriend sitting on the ground next to his vehicle.5 He claimed he asked her if she was okay and that she got up and ran away, back into her apartment.6 The officer maintained he did not observe any injuries or see any blood. However, when the police arrived on scene, the girlfriend was covered in blood, her lip was actively bleeding, and her thumb was severed.7 6. At one point in the interview, the officer speculated as to how the girlfriend sustained the injury to her lip.8 His guess was that she fell forward when he ripped the car door out of her hand, and she hit her lip on the side of his truck. He repeatedly indicated that he didn’t know, that it was an assumption, and that it was his “guess.” When the Office of Internal Affairs’ special agent questioned the officer regarding the girlfriend’s severed thumb, the officer had no idea. He could not even begin to formulate a response.9 This is not reasonable or credible. The girlfriend’s severed portion of her thumb was found in the parking lot. The officer admitted to “slamming” his truck door shut, yet he vehemently denied any knowledge regarding the manner in which his girlfriend’s thumb was severed. The department determined that the officer’s pure speculation was credible, instead of statements made by the girlfriend on the night in question: that she was punched in the face and that the officer slammed his truck door on her thumb. The girlfriend did not have time to think about what she was going to say to her neighbor or the police that night. The girlfriend was at her most vulnerable moment when she told her neighbor that she was struck in the face by her boyfriend, the officer. At the time she made this statement, she was actively bleeding from her mouth, and what was left of her thumb was bleeding as well. It is reasonable to assume she was in a considerable amount of pain. The OIG contends that on the night in question she was telling the truth. 7. The department points out the fact that the girlfriend made inconsistent statements. The department is correct — the girlfriend did make inconsistent statements and subsequently contacted the district attorney, informing that entity she did not “support the charge” against the officer. What the department fails to acknowledge is that the girlfriend was a victim of domestic violence. Unfortunately, the sad reality is that domestic violence victims have a propensity to recant. Recanting refers to the act of trying to take back or withdraw a prior statement. “False statements in domestic violence cases are a significant problem and considered an epidemic with an estimated 50 to 4. Office of Internal Affairs’ interview of officer, time stamp, 18:00–32. 5. Office of Internal Affairs’ interview of officer, time stamp, 18:38. 6. Office of Internal Affairs’ interview of officer, time stamp, 20:02–04. 7. Police Department Crime/Incident Report, officer’s report narrative, p. 3 of 5. 8. Office of Internal Affairs’ interview of officer, time stamp, 35:44–36:08. 9. Office of Internal Affairs’ interview of officer, time stamp, 37:33–50. Page 9 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 90 percent of domestic violence victims recanting.”10 That the girlfriend recanted her statements should not negate what she initially told the police on the evening of the incident, which included that she desired prosecution. The girlfriend’s statements to the police on the night in question and her express desire for prosecution should be the statements given the most weight. 8. The department points out the girlfriend admitted her memory of the alleged punch was “blurry” and that she later stated she lost consciousness. It is puzzling the department never thought to put the two together —specifically, the possibility that the girlfriend’s memory was “blurry” because she, in fact, lost consciousness on the night in question. The department never even considered that perhaps on the night in question, when the girlfriend was speaking to the police, she may not have even realized she had lost consciousness. It is plausible that, upon further reflection, after the shock of the night’s events had worn off, she may have realized that she did, in fact, lose consciousness. Furthermore, it is reasonable to infer that the girlfriend did not anticipate getting punched in the face. Therefore, it is valid for her, literally, to have not seen the officer’s fist coming toward her face. 9. The girlfriend’s interview with the Office of Internal Affairs occurred on May 15, 2019. This interview occurred five months after the incident in question. It is natural for some of the irrelevant details, such as how many bags the officer carried out or whether she carried a bag down to his car, to have been forgotten. This does not mean that her entire version of events should be dismissed. It is a natural and inevitable occurrence for memories to fade over time. 10. The department asserts that the neighbor did not witness any interaction between the girlfriend and the officer. However, the neighbor did hear the girlfriend and the officer fighting from his bedroom window. He recognized the girlfriend’s voice during the argument, and he could tell from the tone of their voices that the two were arguing. The neighbor heard the arguing stop, and then he heard the loud screeching of tires. The neighbor also heard the girlfriend crying and found the girlfriend walking back toward her apartment. The neighbor requested that the girlfriend stay with him in the parking lot while he searched for her thumb in case the officer returned and attempted to hurt her again. The neighbor’s independent observations corroborate the girlfriend’s statements. In addition, the girlfriend explained to the neighbor the events that had transpired between herself and the officer. She told the neighbor that the officer punched her in the mouth and slammed his car door on her hand, causing her thumb to be severed.11 This is consistent with the statements she made to the police later in the evening. 10. Njeri Mathis Rutledge, “Turning a Blind Eye: Perjury in Domestic Violence Cases,” New Mexico Law Review 39, no. 1 (Winter 2009): 149–94. 11. Office of Internal Affairs’ investigation report, summary of interview of neighbor, pp. 9–10. Page 10 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent DDAATTEE Prison Oversight OOIIGG NNOO.. 2200––0033 SSEENNTTIINNEELL CCAASSEE JJUUNNEE 1155,, 22002200 11. The department notes that, subsequent to the preliminary hearing, where the officer was held to answer on all charges, the district attorney declined to proceed with the case. The OIG will not speculate as to the reasons why the district attorney did not continue with the prosecution of the officer. However, it is important to distinguish among the different legal standards of proof. In a criminal case, the prosecution has the burden of proving its case beyond a reasonable doubt. Reasonable doubt is the highest standard of proof in the American legal system. What is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge (Commonwealth v. Webster, 59 Mass. 295, 320 (1850). In contrast, the department has the burden of proving its case by a mere preponderance of the evidence, which is one of the lowest burdens of proof in the American legal system. “The California Supreme Court has stated that the standard of proof to be used in state employment cases is a preponderance of the evidence” (Skelly v. State Personnel Board, supra, 15 Cal.3d at p. 204, fn. 19, 124 Cal.Rptr. 14, 539 P.2d 774). Practically speaking, the department is required to prove that it is more likely than not that the officer punched his girlfriend and severed her thumb. The girlfriend’s statements to the police and to her neighbor, the neighbor’s independent observations, and the physical evidence of the girlfriend’s injuries are sufficient to prove the department’s case. In the OIG’s opinion, the department had sufficient evidence to sustain the allegations and dismiss the officer. 12. The department’s credibility determination ignores the dynamics of domestic violence, revictimizes the girlfriend who suffered through a traumatic event and is permanently disfigured, and allows the officer to remain discipline free and maintain his position of authority as an officer with the department. Page 11 of 11 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov